Paper on Terrorism
I wrote this when pursuing an MA in International Relations.
Over the course of the war on terror, more than 700 people have been incarcerated in the Guantanamo Bay detention facility; stories of torture abound. Many in the government have justified any alleged mistreatment as necessary for security of the citizens of the United States and that at least some of the prisoners constitute a grave threat to US security as well as the security of our allies and other nations. In the light of the changing face of war, what rights do unlawful combatants have? What capabilities does a nation have to protect sovereignty? This paper examines Guantanamo Bay and its use against International Law. This is not an attempt to convict or defend American citizens through essay; rather it is an analysis of perceived facts with snippets of commentary on shortcomings of existing law. First, the paper will explain alleged acts at Guantanamo bay through interviews with detainees, witnesses, and third party interest groups. Once the acts have been described, they will be held against existing standards and definitions of torture to clarify if the acts indeed qualify as torture. After defining torture, the defense that has been put forth by the US government will be included to see what justifications were made for alleged treatment and what validity they may have based on existing US laws and treaties. Finally, an examination of all of the above as it applies to International Law and how alleged perpetrators could be brought to justice and if it is even possible to bring them to justice. While this paper does not attack the validity and necessity of the war on terror or other actions taken by the US government since 9/11, there will be references to other action to highlight the severity or lack thereof concerning actions at Guantanamo and to clarify what actually occurred at Guantanamo.
It is difficult to clarify exactly what went on at Guantanamo. The International Committee of the Red Cross, agents from the FBI, former detainees, and international watch groups have all alleged acts of inhumane treatment, while the official stance of the US government during the period of alleged acts maintained a certain distance from allegations of torture. A 2007 report from the ICRC put forth interviews at Guantanamo with 14 high value detainees. This report does indicate heinous treatment overseas at a variety of locations, but the only reference to Guantanamo in their report indicates that it was an improvement on earlier treatment. (citation) They give little definitive documentation on what occurred at Guantanamo. Regarding other NGO attempts to hold the US government accountable for Guantanamo, It would seem they are reacting to leaked reports and hearsay which though relevant does not indicate incontrovertible proof of torture. However, it is one of these leaked memos, which may provide the most damning evidence of mistreatment. An FBI memo includes written testimony from numerous FBI agents appalled at the conditions present in Guantanamo. The treatment included systematic actions of sleep deprivation, loud continuous noise, and continuous loud noise in the form of American rap and heavy metal. In addition to this, interrogators forced detainees into stress positions held for periods so long that the detainees were obliged to defecate or urinate on themselves, and in continued solitary confinement, temperatures were regulated at either extremely hot or cold. There were also actions designed to cause mental stress including the simulated soiling of the Koran, and lap dances by female interrogators, and simulating the soiling of the Koran in front of a detainee. Beyond the above systematic treatments, there were other incidents, which from the perspective of a casual reader might indicate random acts of cruelty that were not sanctioned by leadership. An example of this apparently unsanctioned behavior include wrapping the head and face of a long haired bearded man with duct tape for chanting the Koran nonstop. Other action, which at a glance appears to be random mental anguish includes some truly bizarre occurrences, which included a mock Baptismal of a detainee by a fake Catholic priest and the wiping of alleged menstrual blood on the face of a detainee by a partially nude female interrogator. Throughout the FBI report there was reference to “the Secretary.” Agents imply that the interrogators believed their actions to be approved by Former Secretary of Defense Donald Rumsfeld, and several agents said that though the treatment was not in accordance with FBI policy, it was within the confines of DOD policy.
The definition of Article 1 of the United Nations Convention Against Torture is any by which severe mental or physical suffering is intentionally inflicted on a person to obtain information from the victim or a bystander, or to punish someone for a previous act. However, the caveat on this definition is that torture does not include the pain and suffering that exists from simple legal detainment. This definition is far from conclusive. What exactly is mental and physical suffering? For the sake of the definition of torture, perhaps it is better to use the definition, which though still subjective is less so than the Article 1. If the average person would find an act torturous then perhaps it is indeed torture. A judge or jury depending on the venue would have to clarify if individual acts qualify as torture. The US is a signatory of UNCAT, and regardless of defense it would be reasonable to say that the average American citizen would consider this as torture.
The Department of Justice and by default the Bush administration maintained that Guantanamo Bay was not within the jurisdiction of the United States. While this opinion was found to be invalid in Rasul v. Bush, one might argue precedent to say that it was clear where jurisdiction fell before the case. Article III of the Cuban American Treaty of 1903 indicates that while Cuba maintains ultimate sovereignty over all its contiguous territory, area that would eventually encompass the Guantanamo Bay detention center shall remain under complete control and jurisdiction of the United States. The jurisdictional precedent was reestablished in the 1934 treaty signed by Batista. While Cuba has protested the validity of this treaty under Article 52 of the Vienna Convention on the Law of Treaties, this does not undo the treaty; the US should still exercise jurisdiction over the territory, and therefore it is unlawful for the United States to engage in torture. Given the peculiarity of Former President Bush’s argument that Guantanamo was outside of US jurisdiction, it is ironic that one of the strongest arguments against torture by the US comes from within its own judicial and legislative systems. Expanding on the 1784 Alien Tort Claims Act, the US Second Circuit Court of Appeals in Filartiga v. Pena-Irala held that state sponsored torture fell outside the norms of international law, and that it was within reason that US courts could maintain jurisdiction over private tort.(683) While this does not remedy criminal action, it would lend itself to arguing that if Guantanamo is indeed outside the jurisdiction of the US, then it is still within the right of US courts to prosecute. Alien Tort Claims Act is also relevant in Kadic. Karadzic where torture when not perpetrated in the course of genocide and war crimes is proscribed by international law only when committed by state officials or under color of law. Another argument that has defended the Guantanamo Bay Detention Facitliy is that these detainees are not lawful combatants and therefore not protected by the Geneva Conventions. For this defense we can once again use existing precedent to erode the argument. While a 2005 Detainee Treatment Act came to late to prevent abuses at Gitmo, it cited that the interrogation would be done in Accordance with the Army Field Manual for Intelligence Interrogation. Under the assumption that Gitmo is a military installation, and that the detainees, regardless of their combatant status, were captured in a time of conflict, one would assume that interrogations would have already been done in accordance with the Army Field Manual or some similar standard. the manual does expressly prohibit the use of force during interrogation, but does allow the adjustment of exploitation as necessary for time requirements. Furthermore, the Army Field Manual lists several categories of people subject to interrogation including insurgents. On the same page of the Field Manual, it states that all members are given protected status in accordance with the Geneva Convention for the Protection of War Victims. It specifically states that this includes suspected terrorists until a competent authority has determined their precise status, though it never concludes constitutes a competent authority. There is direct clarification in the field manual that torture is not within the confines of US law and all acts of torture including mental and physical torture are punishable under the UCMJ. Another ruling that came to late was Hamadan v. Rumsfeld. The court ruled that detainees must be treated in accordance with the Geneva Conventions. Regardless retroactive rulings, there was legal precedent to classify these acts as illegal given that the US is a signatory of UNCAT. As signatories of this treaty, each state party shall ensure that all acts of torture are offenses under domestic criminal law and jurisdiction is established in any sovereign territory or on board a ship or aircraft registered n the state concerned. (684)
Applying the International Law
Given the above four criterion of UNCAT, it may seem that the interrogators are in violation of international law. Should the above transgressions be defined as torture, then the state should cooperate in examining the evidence in accordance with article 20 of UNTAC. However, both in writing and in practice, the state may not comply with an investigation. In addition to Article 20, a new protocol adopted n 2002 and implemented in 2006 would put forth that states are required to prevent torture and that a representative of the Subcommittee on Prevention of Torture should be allowed to investigate allegations of torture. However again this is an issue that punishment cannot be meted out retroactively for a policy not yet in existence. Given that the location as well as the origin of alleged action took place in an American State, it is also relevant to include the US membership in the Order of American States and its signing of the Inter-American Convention on Human Rights. Article 5 of IACHR establishes a freedom from torture, and Article 27 specifically precludes a state from suspending the rights in Article 5. Peculiarities of this treaty include that the individual petitioning for redress must have exhausted all avenues within the nation of residence. Of course, given that many of the detainees have been held for years without charge would indicate that there is no possibility of exhausting local resources. While the convention guarantees protection without regard to nationality, there is room for argument that detainees from the Middle East do not qualify for protection. This issue has already come up as the Inter-American Commission on Human rights has filed complaints on four occasions regarding the US’s detainment, treatment, and withholding of basic rights guaranteed in the Convention. The Commission has adopted resolution n. 2/06 putting forth that the US should not only close the base, but also ensure that perpetrators of torture be investigated, prosecuted, and punished (386) This indicates the inherent lack of strength in the OAS, but explaining legal theory may be a lot easier than applying the law. Under the Geneva Conventions given that the detainees were unlawful combatants, they shall be treated as civilians and therefore subject to prosecution under normal criminal law. (1174) So the question that must be asked, should the detainees have been prosecuted under interim judicial systems in Afghanstan? Should they have been brought to US jurisdiction to be tried? While most International Law argues against the US treatment of detainees, there is one important case that must be referenced that would support what occurred. In Ireland v. United Kingdom, it was shown that treatment could be inhuman and degrading without necessarily being considered torture. Cited in this case was the use of stress positions, excessive noise, and deprivation of sleep and sustenance. Given that some of these are the exact descriptions of the various visitors to Guantanamo, can a US interrogator necessarily be found liable?
Without the establishment of new precedent it would appear that a state cannot press charges against another state or on behalf of a citizen, and to a certain extent, states have immunity from international prosecution of torture. In Bouzari v. Iran, an attempt to petition for redress against the Iranian government in a Canadian Court for acts of torture was rejected. Bouzari who retained his Iranian citizenship but received residency in Canada was unable to sue the Iranian government in an Ontario court. One could assume that a Guantanamo detainee would also be unable to sue the US government in a third party court. In theory the state where the detainee maintains citizenship would prosecute on their behalf, but the likelihood of these detainees receiving positive treatment in their countries of origin is slim; this fear is cited as one of the reasons for their continued detainment even after acts of torture have been ceased. The state v. state argument is further eroded by Al-Adsani v. Government of Kuwait where a British-Kuwaiti citizen petitioned the UK government for alleged wrongs in Kuwait and the court concluded that a state is immune from the jurisdiction of the courts of the UK. It was specifically determined in Jones v. Saudi Arabia, that though torture was prohibited by international law, immunity is still applied to a state. (717) regarding exceptions to immunity, the only exceptions to immunity in the UN Convention on Jurisdictional Immunity are regarding intellectual property. With no stretch of current precedent can one state petition another on behalf of a non-resident, resident, or citizen for alleged acts of torture. However in regards to criminal proceedings, this immunity does not necessarily exist. In Exparte Pinochet Part III, in an attempt to extradite former Executive Pinochet from Britain to Spain for crimes against humanity, it was determined that an individual would have immunity within his official capacity as a member of the government, but crimes committed before or after a term could be prosecuted. Arguing that Pinochet’s conspiracy to commit atrocities began long before his term, Spain attempted to extradite. Pinochet never stood trial, but it did establish certain legal precedent that a leader could not be tried internationally for crimes committed during his tenure. An attempt in France by International Federation of Human Rights Leagues (FIDH) to charge Rumsfeld with torture over the Abu Ghraib incident has already been thrown out because of the above immunity. Regardless of precedent for state immunity new cases regarding crimes against humanity in Rwanda and Yugoslavia work against this traditional legal understanding. For the crimes in Rwanda, a head of state was actually tried, and his charges of torture was just one of many included in the categories under crimes against humanity. In cases regarding Yugoslavia it was shown that action had to be widespread and systematic. While these cases do undermine the understanding of state immunity, it must be reminded that in both of these cases the perpetrators were tried for massive acts of genocide. Though torture is one category among many in the understanding of genocide, few would argue that systematic abuse of detainees was widespread and systematic. Yes, there have been alleged abuses of detainees in Afghanistan and Iraq along with Guantanamo, and there have been darker accusations of interrogation occurring in Eastern European countries and Syria, given the overall restraint in both OIF and OEF, one could hardly advocate the position that the US is guilty of genocide. An issue to be considered when trying to apply precedent to US officials responsible for acts at Guantanamo, is the fact that power is spread out over so many people within the US government. Who would actually be labeled responsible for violations of international law?
In accordance with UNCAT, an offending state is obligated to either extradite or prosecute alleged offenders. Alongside the implied responsibility to attain justice, there has been an increasing tendency toward individual responsibility. In theory, any individual, regardless of rank or governmental status would be personally liable for any war crimes or grave breaches should they be the issuing authority.( citation page 402) The Nuremberg Charter implies that individuals that are guilty of war crimes are punishable under international law; included in war crimes is the use of torture. The strongest argument for individual responsibility comes from the International Law Commission 1996 Draft Code of Crimes against the Peace and Security of Mankind. This Draft argues that the superior is ultimately responsible for both ordered violations as well as unordered violations. While this idea may be in accordance with traditional military “burden of command,” the commission of an illegal act in the execution of one’s duties does not alleviate the subordinate, but it may mitigate certain prosecution. As demonstrated earlier, most cases of actual torture for the sake of sadistic pleasure were isolated at the individual level, and UCMJ and LOAC already provide the ability to prosecute if necessary. As previously addressed, it is difficult to assign blame in a government like the United States where power is spread among three co-equal branches of government along with their corresponding appointed officials.
The above paper as described actions of
While it may not be what many want to hear, it is necessary to point out that justice is usually done on behalf of the winner in a conflict including declaration of war or a complete revolutionary government change. Perpetrators of war crimes in Vietnam have gone unpunished because the outcome of the war was in their favor, whereas perpetrators of crimes against humanity in Yugoslavia and Cambodia are one by one being brought to Justice because they lost the war or there was a significant governmental change respectively. There are three ways that the US could possibly be held accountable for its actions. The first is the possibility of the US experiencing a major change in government beyond the standard peaceful transition of power which occurs every 2, 4, or 6 years. The second is that the Global War on Terror takes a turn in an unforeseen direction. The third is that torture at Guantanamo Bay, instead of being treated as one isolated regime, it becomes part of an overall quest for justice which would include the overall legality of the wars in Afghanistan and Iraq and the subsequent abuses in Abu Ghraib, Eastern Europe, and other countries. Another potentially upsetting viewpoint is that what happens if those seeking justice lose in an attempt to bring the US government to justice? In Ireland v. UK, the plaintiffs lost, and degrading treatment was justified. In the FIDH attempt to charge Rumsfeld in France, the immunity of a position in government for crimes in office was strengthened. What happens when the US is brought to court and the plaintiff loses? Suddenly 60 years of work toward advancing human rights is undermined by the justification of torture in time of war by the strongest country in the world. While it is obvious that there is a strong case against various people in the US government, this is the wrong time to pursue justice. WE must consider the possibilities of losing as well as winning.
Citation for the definition of Torture. http://www.hrweb.org/legal/cat.html
Definition of Obscenity
Army Manual on Interrogation
Use greers thing fro the Ireland case.
Al Adsani v. Kuwait
Jurisdictional Immunity UN
Second Cuban American Treaty
First Cuban American Trety
Viennea Convention on Treaties
Interntaionl Law cCommision 1996 Draft Code of Crimes Gasint the Peace and Secuirty of Mankind.
InterAMerican COmission on Human Rights
notes on what I still need. I need more info on witnessed accounts. I can view more of the FBI paper, but right now what I have seems to be nothing worse than summer camp hazing.
Need to examine yugo/Rwanda. NEED more on the 1996 draft.
Ashcroft v. Iqbal?
Not technically at war?
Geneva contention for the Protection of War Victims.
Need more info on the unlawful combatants thing.
Rasul v. Bush